E. I. Du Pont De Nemours & Co., Inc.

E I DU PONT & CO E. I. du Pont de Nemours & Company, Inc. and Martinsville Nylon Employees' Council Corpo- ration. Cases 5-CA-18636 and 5-CA-18736 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On May 17, 1988, Administrative Law Judge William F. Jacobs issued the attached decision. The General Counsel and the Union filed exceptions and supporting briefs, and the Respondent filed a brief opposing the exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions 1 only to the extent consistent with this Decision and Order. We adopt the judge's dismissal of the allegations that the Respondent violated Section 8(a)(5) and (1) by insisting that negotiations take place at the plant during regular business hours, and by curtail- ing certain employee privileges in the plant's locker rooms. With respect to the judge's findings concerning the Respondent's restrictions on permission for em- ployees who are also representatives of the Union to pursue union business on company-paid time, however, we distinguish between restrictions that were, in effect, nothing more than implementations of the express terms of the collective-bargaining agreement and restrictions that amounted to new requirements that were both inconsistent with past practice and not contained within the agreement. This distinction is essential because it is undis- puted that the Respondent proposed all of these changes to the Union during the term of the agree- ment and offered to bargain over them. The Union declined to bargain, taking the position that the Re- spondent was obligated to maintain current prac- tices in effect until the agreement expired. Certain- ly the Union's position was justified about any modifications of terms and conditions that were es- tablished by the collective-bargaining agreement. Under Section 8(a)(5) of the Act as supplemented by the proviso to Section 8(d), midterm modifica- tions to provisions of a collective-bargaining agree- ment involving mandatory subjects of bargaining i The judge did not pass on the Respondent's affirmative defense that certain issues in this case should be deferred to the arbitration process of the parties' collective-bargaining agreement In the absence of exceptions we find it unnecessary to address this matter 563 are prohibited unless they are by mutual consent or the party desiring the change pursuant to a reopen- er provision has satisfied the requirements of Sec- tion 8(d) with respect to timing and notices to the other party and to mediation agencies. Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 185-187 (1971); Martin Marietta Energy, 283 NLRB 173 (1987), enfd. mem. 842 F.2d 332 (6th Cir. 1988). However, with respect to any existing practices that were inconsistent with the written terms of the agreement, the Respondent surely could not be found in violation of the 8(a)(5) and 8(d) proviso prohibitions when it offered to bargain over changes in the practices and when its own bargain- ing position was essentially to return to the written terms of the agreement. In distinguishing between terms of the agreement and existing practices, we do not suggest that an agreement can never be read as encompassing past practices that are not specifically written into it. But where, as here, the contract contains a clause stating that the written agreement is to be the par- ties' "entire Agreement" except as to any later sup- plemental agreements "executed in the same manner" as the main agreement, and the past prac- tices in question are inconsistent with the written terms, those practices cannot properly be consid- ered implied terms of the agreement.2 In our view, the past practice by which employee/union repre- sentatives spent substantial amounts of paid time during their work shifts conducting nongrievance- related union business conflicts with the parties' written agreement on the activities of such repre- sentatives on paid time. Therefore, to the extent that the Respondent proposed to limit union repre- sentatives to the activities defined in article XII of the collective-bargaining agreement, we find that it did not make an unlawful midterm modification of the agreement. However, the Respondent did not content itself with retreating to the bare bones of the contract terms. It added new procedures that were incon- sistent with existing practice and that, at least in one respect, could not fairly be implied from the contract terms. As more fully detailed in the judge's decision, on March 8, 1987, the Respondent issued a memorandum to its supervisors concern- 2 This represents the construction of "entire agreement' clauses often followed by arbitrators See, e g, Wallace Murray Corp, 72 BNA LA 470, 474 (1979) (Abrams, Arb), American Seating Co, 16 BNA LA 115, 117 (1951) (Whiting, Arb) But see Williams-Russell and Johnson, 91 BNA LA 1215 (Jan 17, 1989) (Byars, Arb) (holding employer to a past prac- tice contrary to contract language when the practice involved a method for computing benefits and the employer alone had been responsible for the computations) See generally Elkouri & Elkouri, How Arbitration Works, 437-451 (4th ed 1985) 294 NLRB No. 43 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing, inter alia, a set of five questions to' be an- swered by union representatives who seek permis- sion to "receive, investigate, and handle" contrac- tual grievances.3 Several terms of the agreement- in particular the requirement that both the union representative and the potential grievant receive permission to confer over a grievance and the spec- ification of "a reasonable amount of time during working hours" for receiving, investigating, and handling grievances-may reasonably be read as al- lowing management to ascertain who is conferring with whom during working hours and approxi- mately how long the handling of the matter may be expected to take. Asking the union representa- tive the location of the grievant and the identity of his supervisor is also a procedure fairly implied from the contract terms, because this is simply a means of assuring that the grievant 's supervisor is contacted and gives the permission required under the agreement. The contract terms do not, howev- er, clearly imply that the Respondent was free to learn in advance "the nature of the grievance."4 Thus, insofar as the Respondent implemented a procedure containing that question and denied a union representative time off because of his refusal to answer the question, the Respondent violated the statutory prohibition against midterm contract modifications, discussed above, because it took this action without the Union's consent and without The five questions were I Who is the grievant or employee with whom you want to meet? 2 What area of the plant does he/she work? 3 Who is the employee's supervisor or contact supervisor? 4 What is the nature of the grievance? 5 How much time do you think you will need? The set of questions was promulgated in connection with the Respond- ent's reassertion of the contract's grievance provisions contained in art XII, including Section 5 An accredited Representative of the Union, on being presented with a grievance shall be allowed a reasonable amount of time during working hours without loss of pay to receive, investigate and handle such grievance in accordance with the grievance proce- dure after obtaining permission from his immediate supervision It is understood that in contacting an employee concerning the settlement or handling of a grievance, prior advice of the desire to make the contact will be given to the employee's supervision Section 6 Any employee having a grievance shall be allowed a reasonable amount of time during working hours without loss of pay to present his grievance to his Representative, after obtaining permis- sion from his immediate supervision The contractual provision for a reasonable amount of time for a union representative to "receive , investigate and handle such grievance in accordance with the grievance procedure," read together with the provi- sion allowing an employee not to raise a possible grievance first with his supervisor but to "elect to take the matter up directly with his union Representative" may reasonably be read as allowing an employee to dis- cuss his potential grievance with the union representative before it is for- mulated in final terms for presentation to management Thus, the Re- spondent's request to ascertain in advance "the nature of the grievance" could undermine an employee 's election to take up a matter first with his union representative and not merely be an effort to verify that the union representative was processing a grievance satisfying the 8(d) proviso requirements regarding timing and notice.5 ORDER The National Labor Relations Board orders that the Respondent, E. I. du Pont de Nemours & Com- pany, Inc., Martinsville, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Mar- tinsville Nylon Employees' Council Corporation, by unilaterally implementing a procedure resulting in the denial of time off during working hours without loss of pay for a union representative to deal with contractual grievances. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Abide by the terms of the parties' collective- bargaining agreement concerning the denial of time off during working hours without loss of pay for union representatives to deal with contractual grievances. (b) Post at its facility in Martinsville, Virginia, copies of the attached notice marked "Appendix. 116 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent' immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. a The incidents of denials of time off for handling grievances involved union representative Stan Rogers On March 10, 1987 , and again in late March the Respondent's supervisor, Roger Smith, denied Rogers permis- sion to deal with a contractual grievance based on his refusal to answer the questions On March 17 and 18 the Respondent's supervisor, Cecil Perty, similarly denied permission to Rogers because of his refusal to re- spond to the questions However, this unlawful conduct does not amount to a violation of Sec 8(a)(3), alleged in the complaint , in the absence of a showing of unlawful motive Other incidents, as described in the judge's decision and as alleged in the complaint, are not supported by evidence sufficient to make out violations of the Act under our analysis here 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " E I DU PONT & CO APPENDIX , NOTICE To EMPLOYESS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Martinsville Nylon Employees' Council Corpora- tion by unilaterally implementing a procedure re- sulting in the denial of time off during working hours without loss of pay for union representatives to deal with contractual grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL abide by the terms of our collective- bargaining agreement concerning the denial of time off during working hours without loss of pay for union representatives to deal with contractual grievances. E. I. DU PONT DE NEMOURS & COM- PANY, INC. James P. Lewis, Esq., for the General Counsel Thomas Sager and Charles Mitchell, Esqs., of Wilmington, Delaware, for the Respondent. Kenneth Henley, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge. This case was tried at Collinsville, Virginia, 18-20 August 1987. The charge in Case 5-CA-18636 was filed 5 Feb- ruary 1987 by Martinsville Nylon Employees' Council Corporation (the Union) and amended on 2 and 25 March 1987. The charge in Case 5-CA-18736 was filed 20 March 1987 by the Union. An amended complaint in Case 5-CA-18636 issued 23 April 1987 and a complaint in Case 5-CA-18736 issued 5 May 19871 An order consolidating cases issued 1 July 1987. The consolidated cases allege violations of Section 8(a)(1), (3), and (5) and Section 8(d) The answer denies the commission of any unfair labor practices. All parties were represented at the hearing and were afforded full opportunity to be heard and to present evi- dence and argument All filed briefs. On the entire record,2 my observation of the demeanor of the wit- I Both the amended complaint in Case 5-CA-18636 and the complaint in Case 5-CA- 18736 were further amended at the hearing 2 Charging Party 's motion to amend the transcript is granted 565 nesses, and after giving due consideration ,to the briefs, I make the following ' FINDINGS OF FACT3 The ultimate issue is whether E. I. du Pont de Ne- mours Company,. Inc. (the Respondent or the Company) violated Section 8(a)(1), (3), and (5) and Section 8(d) of the Act by unilaterally instituting certain changes in working conditions and thereafter failing and refusing to meet with the Union for purposed of negotiations at rea- sonable times and locations. Facts The Union's Productivity Proposal and its Implementation Respondent , a Delaware corporation , operates a facili- ty in Martinsville , Virginia, where it is engaged in the manufacture of nylon yarns. The employees at the plant have been represented by the Union for over 40 years Recognition of the Union as the designated collective- bargaining representative of the employees has been em- bodies in successive agreements , the most recent and rel- evant of which is effective by its terms for the period 7 April 1986 until 31 August 1987.4 Over the past several years union officers and repre- sentatives were permitted to engaged in various union activities such as conferring and meeting with plant man- agement on negotiations committees and investigating and pursuing grievances . Some of these union officers and representatives spent 60 to 100 percent of their time on union duties as opposed to job-related duties and were paid for this time by the Company. The union offi- cers and representatives were were not required to obtain permission from management before leaving their work stations to engage in these union activities nor were they required to advise management of the specific nature of the union activities before undertaking them There were never any complaints about how long it took In fact, union officials and representatives on the rotating shifts were sometimes transferred to day shift by the Company in order to make it convenient for them to service the membership . The practice herein described reflects the pattern of union representation and conduct over several years prior to 1987. In early 1987 Respondent determined that in order "to remain competitive in, the market place" it would have to find ways of increasing production relative to costs. It was decided that one way of doing this would be to at- tempt to get more production out of certain of the union officials who had theretofore not been required to produce. To this end , management prepared a document entitled "Union Officials and Council Representatives Productivity Proposal." Among other provisions, this document provided that all union officials and represent- atives, with the exception of the union president, would 3 The complaint alleges and the answer admits that the Board has juris- diction and that the Union is a labor organization within the meaning of the Act 4 Hereinafter all dates are in 1987 unless noted otherwise 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD henceforth' have to work on their assigned shifts effective 15 February and that thereafter accredited union repre- sentatives would be allowed a reasonable amount of time during their regular working hours, without loss of pay, to receive, investigate, and handle grievances, only after obtaining permission from their immediate supervisors. On 2 February, Respondent presented its productivity proposal to the Union's committee and advised it that the Company was opening negotiations on the subject of its contents The union representatives objected to the im- plementation of the proposal, stated that it was a matter that should be discussed at contract time, and advised the Company that it would take up the matter with the Union's attorney and would get back to the Company later The parties ' met again on 5 February specifically to discuss the productivity proposal but the Union an- nounced that its attorney was still considering the pro- posal and had made no decision on the matter. The Company reminded the Union that its proposal was scheduled to go into effect on 15 February When the parties met on 6 February to again discuss the subject matter, the union representatives again re- quested that discussion about it be put off until contract negotiation time. They reminded the company represent- atives that 'twice before the Compnay had tried to change the representational system only to later abandon its position. When the company representatives argued that the proposed changes could save the Company $400,000 per year, the Union requested that the Compa- ny supply it with information as to how the representa- tional system worked in its other unionized plants and how the Company arrived at its $400,000 savings figure. The Union also requested copies of any notes taken by the Company during the 1984, 1985, and 1986 contract negotiations pertaining to representational questions. The Union reduced its request for the above-described infor- mation to writing in a letter dated 9 February. On 13 February the parties met again to discuss the productivity proposal The Union maintained its position that the matter should better be discussed at contract time. The Company, at this meeting, supplied some of the information requested earlier and agreed to resched- ule the effective date of the productivity proposal to 8 March. Though the parties met again on 17 February, there 'was no change in their positions. On 23 February the parties met once again and dis- cussed the Company's productivity proposal in depth. The Company reiterated the position it had taken earlier that it would no longer permit union representatives to change schedules to attend meetings with management held between 8 a.m. and 4 p.m The Union responded by insisting that any future negotiations between the parties take place off plant at a neutral location after 4:30 p.m., a position the Union maintained from that time forward. The meeting ended with the Company advising the Union that the productivity proposal would be imple- mented on 8 March. On 8 March the Company implemented its union pro- ductivity proposal and on the same date issued a memo- randum to its supervisors instructing them on procedure. atives, including the vice president and secretary treasur- er, returned to their assigned shifts while the remaining 10 continued to work the day shift. The Union contin- ued, after 8 March, to choose for itself which of its offi- cials and representative would attend labor-management meetings. However, thereafter, the Company would no longer pay union officials and representatives assigned to rotating shifts for time spent attending meetings held out- side their normal shifts. The memorandum which issued that date instructed supervisors to 'permit union representatives to leave their work stations, to investigate grievances as the workload allows. It also instructed supervisors to ask and .obtain answers to the following questions before releasing rep- resentatives to investigate grievances. 1. Who is' the grievant or employee with whom you want to meet? 2. What area of the plant does he/she work? 3. Who is the employee's supervisor or contact supervisor? 4. What is the nature of the grievance? 5.' How much time do you think you, will need? The memorandum also provided that after the represent- ative's supervisor obtains the answers to these questions, he should then contact the grievant's supervisor and ar- range for a mutually convenient time for the representa- tive to meet with the grievant. Prior to 8 March union representative's performed a range of union activities in addition to,, investigating grievances. Thus, they were free to walk about the plant among the employees whom they represented, talk with them about problems or potential problems, and to gen- erally police the contract. They were also free to visit the studio, the Union's office at the plant, to discuss with fellow representatives or union officials, possible emerg- ing contractual or labor-related problems and;to research such issues With the issuance of the memorandum on 8 March and the guidelines requiring representatives to answer to , above-listed questions before leaving their work stations, the union officials and representatives' previously enjoyed freedom to participate in these activi- ties was seriously curtailed. On 8 March 'the Company implemented its union productivity proposal and thereaf- ter enforced the guidelines for its implementation. The complaint alleges that since January 19655 union officials and representatives have been allowed to spend all their time on union business; that Respondent has not required them to perform production work; that this practice was embodied in the latest collective-bargaining agreement; that Respondent's allowing union officials and representatives to spend all of their time on union business and not requiring them to perform production work constituted a past practice; and that when Re- spondent, on 8 March, failed to continue this past prac- tice by requiring union officials and representatives to perform production work, it did so without affording the Union an opportunity to negotiate and bargain about the change in violation of Section 8(a)(1) and (5) and 8(d). Thus, on that date 15 of 25 union officials and represent- s The date appears as amended at the hearing E I DU PONT & CO. Contrary to the allegations contained in the complaint, however,"I find that historically all' union officials and representatives, except for the union president, were ex- pected to perform some production work in addition to their union duties, that the right of union officials and representatives to refrain from performing production work was never impliedly, or otherwise, embodied in the collective-bargaining agreement ; that in 19,80 or shortly before, Respondent began to permit certain union offi- cials and' representatives to switch shifts in order to enable them to more easily perform their union-related duties; that about the same time, Respondent relaxed cer- tain requirements that representatives and grievants obtain permission from their supervisors before leaving their work stations to participate in grievance -related matters; that the deviation from contractual provisions or the relaxation of rules contained therein did not amount to a waiver of Respondent's rights under the contract or to the establishment of a past practice; and that when, on 8 March, the Respondent, for purely economic reasons, returned to,a . literal interpretation of the contract and strict enforcement of its rights thereunder, it did not thereby refuse to bargain in good faith, in violation of the Act.6 6 BASF Wyandotte Corp, 278 NLRB 173 (1986) Both General Counsel and the Charging Party rely on Communications Workers (C & P Tele- phone), 280 NLRB 78 (1985), which I find clearly distinguishable In that case the violative unilateral act concerned a 30-year old practice not cov- ered by the contract In the instant case, the contract covers and controls the subject matter of the alleged unilateral action The relevant contrac- tual provisions, are articles II and XII ARTICLE II RECOGNITION AND SCOPE Section I The UNION is recognized as the exclusive bargaining agency for the employees at the Plant as set forth in Article I of this Agreement for the purpose of collective bargaining with respect to rates of pay, wages, hours of work, and other conditions of employ- ment Section 2 There shall be no discrimination, coercion, interference, or restraint by the COMPANY or the UNION or any of their agents against any employee because of membership or non-membership in the UNION, and the UNION agrees that there shall be no solicita- tion or promotional UNION activity on COMPANY time Section 3 This Agreement constitutes the entire Agreement be- tween the parties hereto as of the execution date hereof However, any supplement which may hereafter be mutually agreed upon be- tween the parties when executed in the same manner as this Agree- ment shall become and be part of this Agreement ARTICLE XII ADJUSTMENT OF GRIEVANCES Section 1 The UNION agrees to select an employee Committee of not more than five (5) officials and/or accredited Representatives, including a Chairperson, who shall constitute the Grievance Com- mittee The UNION will keep the Plant Management advised of any changes in the personnel of this Committee Section 2 In the event that a dispute or grievance shall arise be- tween the COMPANY and the UNION or any employee;'an earnest effort shall be made to settle such dispute or grievance in the follow- ing sequence - FIRST, the aggrieved employee normally will attempt to obtain a settlement through the members of supervision directly in charge However, the aggrieved employee may elect to take the matter up directly with his UNION Representative who will attempt settle- ment of the grievance with supervision directly in charge The ag- grieved employee may be present 567 Section 6. Any employee having a grievance shall be allowed a reasonable amount of 'time during working hours without loss of pay to-present his grievance to his Representative, after obtaining per- mission from his immediate supervision. Its motivation was nondiscriminatory and its action was not unilateral . Indeed, it offered to and did , in fact, meet to bargain with the Union concerning the an- nounced.changes several times between 2 February and 8 March. Following the implementation of the union productivi- ty proposal, a number of incidents occurred which were a direct result thereof. These incidents have been alleged as violations of the Act. Thus, on 9 March, Stan Rogers a union representative, asked permission of his supervi- sor, Roger Smith, to write two grievances. Smith told Rogers that writing grievances was not part of handling or investigating grievances, that he would not pay him to go somewhere and write a grievance, and that Rogers would have to do that on his own time. Also on 9 March, Union Representative James Spain received a telephone call from one of the employees whom he represented. The employee wanted to discuss SECOND, between the employee's Union Representative and the Area supervision of the area in which the grievance occurs If the UNION Representative so desires, he may have the Grievance Com- mittee Chairman present at this step At the FIRST and SECOND Steps, of the grievance procedure an answer normally will be given to the UNION by supervision not later than ten (10) calendar days after the date the grievance was presented at each step In the event an answer is not given by super- vision at a Step, unless an extension of time is agreed upon by both parties, the grievance may be presented at the next Step THIRD, failing a satisfactory adjustment as above provided, the UNION Grievance Committee may present the grievance to the Plant Manager and/or his designated representatives who will render an answer to the UNION within ten (10) calendar days of the date the grievance is presented at this Step , unless an extension of time is agreed upon by the parties Any grievance not presented at the SECOND and THIRD Steps with ten (10) calendar days following supervision's answer to the grievance in the preceding Step shall be considered terminated by the parties unless an extension of the time is agreed upon by the par- ties Section 3 In the event that more than one (1) employee is in- volved in a grievance or dispute in the FIRST Step, the number of employees, exclusive of the UNION Representative, to confer with supervision shall be agreed upon between supervision and the UNION Section 4 Meetings between elected officials and/or accredited Representatives of the UNION and the Plant Management will be permitted on COMPANY time and COMPANY property in cases where such meetings are for the purpose of conferring with the Plant Management No elected officials or Representatives shall be paid for the time consumed in a meeting with the Plant Management outside of his regular working hours No change in the working hours of an elected official or Representative will be made for the purpose of conducting business of the UNION except in cases where a Representative or elected official may make his own arrangements with another qualified employee, subject to the approval of his su- pervision and provided no overtime pay is incurred Section 5 An accredited Representative of the UNION, on being presented with a grievance shall be allowed a reasonable amount of time during working hours without loss of pay to receive, investigate and handle such grievance in accordance with the grievance proce- dure after obtaining permission from his immediate supervision It is understood that in contacting an employee concerning the settlement of handling of a grievance, prior advice of the desire to make the contact will be given to the employee's supervision 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with Spain a problem which had arisen in his area. When Spain advised his supervisor about the call, the supervi- sor asked Spain for the name of the employee and what the nature of the'problem was. Spain told the supervisor that it was none of his business The supervisor there- upon told Spain that he could not leave his work station. A few hours later the exact same scene was reenacted. On 10 March Stan Rogers asked Smith for permission to investigate a grievance. Apparently after some discus- sion about the newly enforced guidelines, Smith stated that Rogers had made it very clear that he would not follow the union productivity proposal and warned him that if he left his job assignment in order to investigate grievances without complying with its requirements, it would be considered insubordination and grounds for dismissal. On 11 March Union Representative Anthony Hut- chens told his supervisor, Floyd Trent, that he had three grievances to investigate. Trent asked Hutchens the five questions listed supra, but Hutchens refused to answer them on grounds of confidentiality. Trent then asked Hutchens how long it would take him to investigate the grievance, explaining that he had to know how long to relieve Hutchens. Hutchens replied that the first two grievances would not take long because he just had to have a conversation with a supervisor, but that the third grievance might take a while because he had to do some research and, thereafter, might have to contact the Union's attorney. Trent told Hutchens to investigate the first two grievances but he could not take care of the third one. As a result of this conversation Hutchens just investigated the first two grievances On 13 March Supervisor Melvin Barnes told Union Representative Joe Foley that he' must be on the job at all times and that he could no longer conduct union busi- ness without Barnes' approval. Thereafter, Foley could no longer visit the studio as he had done before nor could he investigate employee concerns about asbestos without first obtaining permission from Barnes, a step which, prior thereto, had been unnecessary. On 17 March, Stan Rogers was working for Supervi- sor Cecil Perty.7 He asked Perty for permission to inves- tigate a grievance. Perty asked Rogers to answer five questions, but Rogers refused Perty told Rogers that unless he answered the questions, he would have to refuse to give him permission to investigate the griev- ance. The following day Rogers and Perty had the same discussion with the same result. On March 20 Floyd Trent told Anthony Hutchens that he was no longer permitted to go to the studio with- out permission. He added that even with permission, he was not allowed to have a key to unlock the door Sometime in late March, Rogers asked Smith for per- mission to process a grievance. Smith refused to let Rogers process the grievance when he refused to answer the five questions put to him. There are additional allegations in the complaint"' which are not substantiated by the evidence in the ° Sometimes appears in the record as Purdy 8 G C Exh 1-0 record. In fact they are not even touched on` in some cases, I recommend dismissal of these. These incidents, which occurred between 9 March and the end of that month, were the'direct result of Respond- ent's reimplementation of its contractual rights and the union representative's decision to react to the reimple- mentation in an adverse fashion. Respondent' s insistence that union representatives follow the contractual griev- ance procedure was not in, error and its rules whereby it required them to follow reasonable steps to comply with the grievance procedure was not violative of the Act. I will therefore recommend dismissal of the allegations contained in paragraphs .13 and 15 of the complaint issued in Case 5-CA-18736. Time and Place of Negotiation Paragraph 11 of the complaints alleges that as of 9 March, Respondent insisted on negotiations on the prem- ises of its facility and during business hours.10 The histo- ry of bargaining reflects that the parties had 'historically met to negotiate, to process grievances, and to otherwise treat with labor/management problems usually on Re- spondent's premises between the hours of 8 a.m. and 4 p.m. At the meeting held on 23 February,'scheduled for the purpose of discussing implementation of the union productivity proposal, however, the Union announced that if Respondent was no longer going to permit union representatives to change schedules in order to attend meetings during the 8-to-4 shift, and was,going to insist that the Union's vice president and secretary-treasurer go back to their assigned rotating shifts, then the Union would insist that henceforth all labor/management meet- ings be held off the plant premises at a neutral site be- cause the union representatives were no longer getting paid. The Union also insisted that future meetings be held after 4:30 p.m. so that union representatives work- ing the midnight shift would 'be able to get some sleep before engaging in bargaining negotiations. There was no agreement on this subject at the 23 February meeting and, as noted, Respondent implemented its union produc- tivity proposal on 8 March. Between 9 and 12 March Respondent's negotiator, Harold Slate, contacted the Union's president, Harold Goad, on five or six occasions requesting meetings at the plant at 10 a.m. to continue negotiations on various labor-management subject matters. Each time Goad ad- vised Slate that the Union would have a problem meet- ing with the Company because the secretary-treasurer was on the midnight shift and would not be available to record minutes and because various other union repre- sentatives were also unavailable to meeting during the day shift. He suggested a meeting outside the plant after 4:30 p.m. Slate refused each time to meet off the plant Goad testified that he felt that it was unfair to union rep- s Case 5-CA-18736 10 The cited paragraph continues "with union officers and representa- tives while refusing either to permit them to change shifts or to negotiate at other times and locations as requested by the Union, thereby failing to continue in full force and effect the past practice described and fail- ing to meet with the Union for purposes of negotiations at reasonable times and location " E I DU PONT & CO resentatives on the 12-to-8 shift to require them to have to stay up 2 hours to attend a 10 `a.m. meeting for the Company's convenience. On 12 March Slate wrote a memorandum to Goad in which he stated that he could not understand why the Union was insisting that bargaining sessions be held off the plantsite after 4 p.m. He pointed out that for 30-40 years bargaining had always been conducted at the plant during the 8 to 4 shift; that any records which the parties might need were at the plant; that the practice of meet- ing at the plant during the day shift had worked out quite well in the past and that he planned to continue the practice unless the Union could provide more compelling reasons for changing it. He then stated that he was set- ting up a meeting at the plant for 18 March at 10 a.m. since there was "a pressing need to discuss some items that are vital to the future success of this plant." A list of items to be discussed was attached. By memorandum dated 16 March, Goad advised Slate that due to recent changes by the Company affecting the schedule of union officials and representatives, it was "no longer either practical, convenient or appropriate" for the Union to meet during the day shift on company property. The memorandum suggested a neutral site for the next meeting By memorandum dated 17 March Slate advised Goad that the meeting which he had scheduled to take place at the plant at 10 a.m. on 18 March would take place as scheduled. He stated that he would attend the meeting to hear the Union's input on the various subjects listed. The memorandum concluded with the statement that if the Union failed to attend the meeting the Company would go forward with implementation of its listed proposals, "forced to consider only that input provided to date" by the Union. The same date Goad replied to Slate's memo- randum, maintaining his previously held position and ob- jecting to the "implementation of any changes concern- ing matters subject to negotiation without having first bargained with the Union." On 18 March at the appointed hour, company repre- sentatives appeared at the designated place for the meet- ing. Union representatives did not. By memorandum dated 19 March Slate advised Goad of plans to imple- ment certain changes in working conditions in the near future "absent any further input from the Union " These planned changes were to have been the subjects of nego- tiation at the 18 March meeting at which the Union failed to show. The memorandum also outlined several proposals concerning which the Company "would really desire more input from the Union." A meeting was sug- gested but so was a reminder that the issues would have to be addressed before 12 April, the implementation date. From 19 March through mid-June the Union and the Company exchanged a number of memoranda. The Company's memoranda usually included proposals for changes in working conditions or methods of production, some of which had already been discussed with the Union and others which had not. i i These memoranda " There were also some proposals relating to job training 569 also included a request for a meeting with the Union during which the Union could offer input on the Compa- ny's proposals. In most cases the meeting would be scheduled to take place at a particular date and time, always on the Company's premises. When the Union failed to show up at the appointed hour, the Company would send a followup memorandum to the Union noting the absence of union representatives and advising Goad that "absent any additional input from the Union" on the proposals, they would be implemented by a cer- tain date. The Union would be encouraged each time to meet with the Company at the plant to offer some input on the proposal before the implementation date. The Union's memoranda in reply to those of the Com- pany only noted the desire of the Union to meet off the company premises at a neutral location. Each contained a request that the Company not change the terms and conditions of employment prior to meeting with the Union and negotiating in good faith. In an 8 May memo- randum, Goad noted his objection to the implementation of the Company's proposals since 8 March. In addition to the exchange of memoranda, Goad and Slate discussed, in person, the possibility of scheduling alternative times and places for meetings. In each in- stance they maintained their respective positions. Goad insisted that meetings be held away from the plant while Slate insisted, in accordance with precedent, that they be held at the plant. During one of these discussions Slate suggested that the parties sit down and netotiate when the rotating B shift, the shift on which the Union's vice president and secretary-treasurer were employed, was on days. This was in March. Goad replied that the Union's committee would be glad to meet with Slate off the plant at a neutral site even though the union officers were working days at the time and were available for meetings with management. Goad testified that other unnamed members of the Union's bargaining committee were not on days and presumably therefore not available. The question before me is whether Respondent violat- ed Section 8(a)(1) and (5) on and after 8 March when it insisted that all negotiations be conducted at the plant between the hours of 8 a.m. and 4 p.m. I find it did not. Respondent takes the position that between 30 and 40 years of labor management bargaining had successfully taken place on company time and property and the Union has offered no legitimate basis for disturbing this past practice. Respondent argues that all the Company's negotiators and many of the Union's negotiators are al- ready on company property during the day shift and available to participate ; that all union representatives on working time would be paid for time spent in negotia- tions. Moreover, if negotiations were scheduled during those days when the rotating B shift was on days, the vice president and secretary-treasurer would also be paid for time spent in negotiations. Finally, Respondent has agreed that any union representatives working on other shifts who wished to attend day-shift meetings could do so albeit without pay. I find that the position taken by Respondent with regard to this issue is reasonable and was not proffered in bad faith. By taking this position, Respondent has not 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD engaged bad-faith bargaining and did not violated the Act. The position taken by the Union insisting on off- plant meetings after 4 p.m is not here before me I shall recommend dismissal of the allegation contained in para- graph 11 of the complaint.12 Curtailment of Locker Room Privileges Historically, Respondent maintained a men's and a women's locker room for the use of its employees. The employees kept their equipment and personal belongings there. At the start of their shift the employees would pick up their equipment, then drop it off toward the end of the shift. Several employees also ate lunch and took breaks in the locker rooms where they would eat, drink, smoke, and chew tobacco. Most all the employees used the locker room to store equipment and belongings. Per- haps 50 to 60 of them ate their lunch or took breaks there. The advantage of using the locker room for lunch or breaks was that it was relatively quieter and cooler than out in the plant. In February it came to the attention of management that the locker rooms had fallen into an unsanitary con- dition. On 18 February, members of management met with the Union's contract chairman and cochairman of the union safety committee, Sam Coleman, and another union representative and together inspected the condition of the locker rooms. It was agreed that the lockers were a mess and Respondent's William Martin' 3 announced his intention of closing the locker rooms for all purposes other than storage purposes, effective 1 March. Martin received the impression' 4 from Coleman that the Union neither agreed nor disagreed with his decision to close the lockers for lunch and break purposes Later, on 18 February Martin sent a memorandum to various supervisors calling their attention to the unsani- tary condition of the locker rooms; requiring that they undertake auditing of these facilities, requiring them to report back to Martin their findings and what steps were taken to improve conditions. By notice of the same date employees were notified that because "people have not abided by the rules set forth and agreed upon in July 1966"15 the condition of the locker rooms "is a health and fire hazard and we are, effective Sunday, March 1, 1987, revoking the privileges in the locker rooms of smoking, drinking, eating, and chewing tobacco until fur- ther notice." After the memorandum and notice of 18 February came to Goad's attention he wrote a letter to Martin dated 25 February objecting to "any changes in condi- tion of employment without first affording the Union the right to negotiate over this matter." 12 Reliable Tools Co, 268 NLRB 101 (1983) 11 One of the several product team managers , a midmanagement super- visor 14 Martin's impression was in error Indeed, Coleman had voiced ob- jections to curtailment of the employees' locker room privileges 15 The record contains no further mention of this agreement On 27 February the Union and the Company met to firmly establish the 'Union's objections' to the Company's planned curtailment of locker room privileges.l-However, after the Union's position was established, that it did, in fact, object, no effort was made by the Union to negoti- ate or further discuss the subject No input was offered. The Company indicated a further willingness to discuss the issues but did not offer to rescind its 1 March imple- mentation date As of 1 March, the employees were forbidden to eat, drink, smoke, or chew tobacco in the locker rooms. They were, however, subsequently permitted the use of a conference room for lunch and continued, as before, to use break benches near their work stations during breaks. The Union has not requested further negotiations with the Company on the locker room issue but instead has filed the instant unfair labor practice charge. In my view, the allegation concerning Respondent's unilateral curtailment of locker room privileges is con- trolled by the Board's ruling in Citizens National Bank,'s in which it stated It is well established that it is incumbent upon a union which has notice of an employer's proposed change in terms and conditions of',employment to timely request bargaining in order to preserve its right to bargain on that subject. The union cannot be content with merely protesting the action of filing an unfair labor practice charge over the matter. In the instant case the Union received notice of the Respondent's intention to ban eating, drinking, smoking, and tobacco chewing in the locker rooms In a timely fashion it advised management of its objections In order to obtain input from the Union, a meeting was held on 27 February. At this meeting the Union reiterated its ob- jection but neither offered counterproposals nor suggest- ed future negotiations. When the Respondent later imple- mented its ban as scheduled, the Union filed a charge with the Board. I find that although the Union objected in its letter of 25 February and during the meeting of 27 February to Respondent's previously announced change in employ- ee's locker room privileges and thereafter filed an unfair labor practice charge, it failed to bargain over the matter when it was given the opportunity. By its conduct the Union has waived its rights. The Respondent has not violated the Act as alleged. CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 16 245 NLRB 389 (1979), affil 644 F 2d 39 (D C Cir 1981) E I DU PONT & CO 3. Respondent has not engaged'_,in the unfair labor practices alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The complaint is dismissed. 571 17 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses